Avery Bill finds legislative support

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The Avery Bill is receiving praise and support. It is a compilation of criminal justice reforms, though some are proclaiming its virtues louder than others.

“It’s not all that everybody wanted, but legislation rarely is,” said Keith Findley, University of Wisconsin Law School professor and co-director of the Innocence Project. “But it is a good step in the right direction.”

Findley was a member of the Avery Task Force, a diverse group of bipartisan lawmakers, criminal justice experts and others from around the state, charged with devising recommendations to improve the state’s criminal justice system to lessen the chance that innocent people are imprisoned.

The task force’s namesake, Steven Avery was freed in 2003 after DNA testing proved he had not brutally raped and beaten a woman on a beach in Manitowoc County. Avery spent 18 years in prison.

Rep. Mark Gundrum (New Berlin-R), chairman of the Wisconsin Assembly Judiciary Committee, impaneled the task force and codified the fruits of their labors into a sweeping package of reforms that by all accounts will fast-track its way into the statute books once the Legislature reconvenes in the fall. The governor supports the bill and 25 people signed on as sponsors the very day the package was presented.

Provisions

Key provisions of the bill include:

• Electronic recording of both juvenile and adult felony suspect interrogations.
• Required written police policies governing the eyewitness identification procedures.
• Priority DNA testing in post-conviction cases.
• New provisions for retention of evidence that contains DNA.

The recording provisions in the bill are actually an outgrowth of the recent Wisconsin Supreme Court decision in State v. Jerrell. The court exercised its supervisory authority to require that electronic recordings be made during juvenile interrogations that are held within the confines of a detention facility and where feasible in offsite locations.

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The proposed bill extends this rule to the adult felony arena but doesn’t mandate the use of recording devices when suspects are questioned outside police stations and other holding facilities. The law does, however, provide for the use of a jury instruction if no recording was made — with a few exceptions — that tells the jury it is the state’s policy to record interrogations and allows them to ruminate on why no recording was made.

Waring Fincke, immediate past president of the Wisconsin Association of Criminal Defense Lawyers, said the bill is better than nothing, but he would rather have seen a little tougher stance on certain things. He’d prefer to see fewer exceptions offered to cops to avoid recording interrogations. And rather than a jury instruction, he would have liked the bill to suppress conversations without electronic back-up.

“Police are going to understand very quickly that if they interrogate down at the station they’ve got to turn all this equipment on, but if they ask the questions out on the street, they can say ‘oh gee, I didn’t have batteries in my tape recorder’,” he said. “Maybe I’m being a little too jaded in my view, but cops have gotten away for far too long with coercing confessions rather than going out and doing real investigations. It’s much easier to convict somebody (with statements) out of their own mouth, than put together an investigation that proves somebody guilty beyond reasonable doubt. Hopefully this bill will make them go back to doing investigations.”

Process Involved Compromise

Others would have liked mandated recording too, but as Findley said when you’re talking about legislation, you can rarely please everyone completely. Findley went on to say that the task force took a page from books in other jurisdictions where recorded questioning is already commonplace and the recordings actually favor the cops rather than the criminals.

“In an ideal world we would require recording in the field as well,” Findley said. “But the practicalities of it made that an untenable thing to include in this legislation. Is there some concern that they will just start interrogating more in the field? It’s a possibility but I don’t think that’s going to happen.”

Scott L. Horne, president of the Wisconsin District Attorney’s Association, also served on the task force. Horne said since memories fade and the questions asked and answers given can sometimes be misremembered tapes are tops in his book.

“It allows, from our perspective, the jury to see the natural environment, see the way the defendant appears when responding to questions from the officer,” he said.

“Does he look down and avoid eye contact or does he look the officer in the eye and speak directly and clearly. There is a lot of non-verbal information that would be helpful for the jury to have. I think it’s something that will assist juries.”

It seems both sides of the criminal arena would like for this practice to be adopted — for their own reasons — and Gundrum’s bill assists that endeavor by funding a grant program to help law enforcement agencies purchase recording equipment with a one-percent increase in the penalty surcharge.

Eyewitness ID

The other part o
f the proposal people are saying could have been stronger was the eyewitness protocols. No particular procedures are mandated, but the task force has published some best practices for police to ponder.

Using a neutral administrator — one who knows nothing about the suspect — to administer the photo array or line-up would obviously reduce the chances that non-verbal cues might cue the witness to incorrectly identify someone. But to Horne the more important recommendation was the use of sequential rather than simultaneous presentation of suspects.

“Common sense would indicate that a single array of six photographs implies that the guilty person may well be among the six and the tendency is to pick out the best of the six as opposed to reaching an independent judgment on each of the photographs,” he said. “We are all in the business of doing justice and we are trying to get to the truth. If current research shows us there is a better way of doing business we ought to be doing it.”

And research is the reason Gundrum gave for not mandating the particulars in the eyewitness area.

“We only know right now what we believe to be the best policies,” said Gundrum, who chaired the task force. “Ten years from now, science could show us there is a better way of doing things and we wouldn’t want that stuck in the statutes, that they must do it in a way that is less than perfect if better ways develop.”

He also said since the attorney general’s office has already latched onto the model policies proffered and is implementing them its pretty safe to say law men are willing to embrace — rather than ignore — innovations that improve.

Playing the devil’s advocate however, Marquette University Law Professor Daniel Blinka said these are some solutions to the problem of convicting the innocent that just don’t lend themselves to a legislative fix.

“A lot of these are good ideas, particularly when you look at the horrific breakdown of good investigative techniques. In the Avery case, something must be done,” he said. “But I think this comes down to is heightening the training and professionalization of police and prosecutors. Particularly making sure the cops understand that just because they’ve fixed their sights on one subject, doesn’t mean you abandon objectivity and you don’t keep an open mind as to the person’s possible innocence.”

The bill and its companion in the Senate currently have a total of 29 co-sponsors combined.